For reversal -- Chief Justice Weintraub, and Justices Heher, Jacobs, Francis and Proctor. For affirmance -- Justices Wachenfeld and Burling. The opinion of the court was delivered by Proctor, J.
Plaintiff, the administratrix ad prosequendum of the estate of her husband, Edward J. Corrigan, Sr., appeals from a summary judgment of the Superior Court, Law Division, dismissing her complaint, which sought recovery out of the Unsatisfied Claim and Judgment Fund, L. 1952, c. 174, p. 570 as amended, N.J.S.A. 39:6-61 to 91. The sole ground for the dismissal was that the plaintiff failed to comply with the provisions of N.J.S.A. 39:6-78 and N.J.S.A. 39:6-65, which required the filing of a notice of intention within 30 (now 90) days of the date of the accident as a condition precedent to the entering of a judgment against the Director of the Fund. We granted certification on our own motion prior to consideration by the Appellate Division.
Plaintiff's intestate was killed on December 24, 1955, when he was struck down by a speeding automobile while he was attempting to cross Hoboken Road in East Rutherford, New Jersey. The vehicle continued on its way and neither it nor its driver was identified. As a result of an investigation by the East Rutherford police, one George Roberts, Jr. was apprehended and charged with leaving the scene of the accident. On January 5, 1956, 11 days after the accident, Roberts was convicted as charged in the East Rutherford Municipal Court. The record does not disclose that an appeal was taken.
The decedent left surviving him his wife, the plaintiff herein, two sons and a daughter. The children were not dependent upon the decedent.
On May 16, 1956 the plaintiff, upon learning that Roberts was uninsured, filed a notice of intention to make a claim against the Fund for damages resulting from the death of her husband. On September 28, 1956 she was appointed administratrix ad prosequendum by the Surrogate of Bergen County. On October 11, 1956 she filed a second notice of intention with the Fund. On October 15, 1956 the plaintiff instituted an action against Roberts in the Bergen County Court seeking damages for the wrongful death of her husband.
A copy of the complaint was filed with the Unsatisfied Claim and Judgment Board on October 25, 1956. The case came on for trial on April 1, 1957. The jury was requested to make a special finding as to whether or not the decedent was struck by Roberts' motor vehicle. In response to that request the jury, on April 3, 1957, found there was not sufficient evidence to establish that Roberts' automobile had struck the decedent and brought in a verdict of "No Cause for Action." That verdict was premised upon the sole ground that the decedent's death was occasioned by a motor vehicle the identity of which had not been established.
On May 16, 1957 the plaintiff commenced the present action against the Director pursuant to N.J.S.A. 39:6-79. The Director moved for summary judgment on the ground that the plaintiff had failed to file a notice of intention within 30 days after the accident. The trial court granted summary judgment for the defendant, stating:
"The statute provides that when the death of a person arises out of the use of a motor vehicle in this State, but the identity of the motor vehicle and of the operator and owner thereof cannot be ascertained, an action for damages may be brought against the Director of the Division of Motor Vehicles. R.S. 39:6-78. No judgment, however, shall be entered against the said Director if the notice of intention to make a claim for damages against the Board was not given within 30 days after the accident, unless the giving of such notice was prevented by physical incapacity. R.S. 39:6-65,-78.
In this case, the notice of intention not having been given the Board within 30 days after the accident, and no physical incapacity prevented the giving of such a notice, there will be a judgment for the defendant dismissing the complaint."
The plaintiff on this appeal urges that the notice provisions of N.J.S.A. 39:6-65 are not applicable to an action instituted pursuant to N.J.S.A. 39:6-79. She further contends that the filing of a notice of intention within 30 days after her appointment as administratrix ad prosequendum, although later than 30 days from the date of the accident, was a sufficient compliance with N.J.S.A. 39:6-65.
The defendant contends that the argument made by the plaintiff, i.e., that she need not file any notice since her
action is predicated on N.J.S.A. 39:6-79, "is in conflict with the manifest mandate of the Legislature which declares that any claim against the Fund must be preceded by timely notice" and that "such an argument ...